Stafanpolus KG, Limited Liability Company

Patent Trials and Appeals Board

Oct 20, 2020

2018007632 (P.T.A.B. Oct. 20, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/085,800 11/21/2013 Robert J. Pressini 43046/0603 1069
105758 7590 10/20/2020
Laurence & Phillips IP Law
7327 SW Barnes Road #521
Portland, OR 97225-6119
EXAMINER
ADE, OGER GARCIA
ART UNIT PAPER NUMBER
3627
NOTIFICATION DATE DELIVERY MODE
10/20/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docket@lpiplaw.com
mphillips@lpiplaw.com
mphillips_patlaw@yahoo.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT J. PRESSINI,
WILLIAM D. DUNLAVY,
and RONALD S. SORENSON
____________

Appeal 2018–0076321
Application 14/085,800
Technology Center 3600
____________

Before ANTON W. FETTING, BRUCE T. WIEDER, and
AMEE A. SHAH, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL

1 Oral arguments were presented July 7, 2020.
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STATEMENT OF THE CASE2
Robert J. Pressini, William D. Dunlavy, and Ronald S. Sorenson
(Appellant3) seeks review under 35 U.S.C. § 134 of a final rejection of
claims 21–40, the only claims pending in the application on appeal. We
have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
The Appellant invented a way of increasing forecast accuracy by
disambiguating point of sale data. Spec. para. 1.
An understanding of the invention can be derived from a reading of
exemplary claim 21, which is reproduced below (bracketed matter and some
paragraphing added).
21. An apparatus comprising:
[1] a point-of sales (POS) feed interface configured to receive
historical sales data from at least one POS device,
wherein the historical sales data includes sales data that
are respectively associated with at least one differentiated
sales category;
[2] a filtering logic circuit[4] configured
to remove sales data associated with at least one
predetermined sales category

2 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed January 9, 2018) and Reply Brief (“Reply Br.,” filed July 18,
2018), and the Examiner’s Answer (“Ans.,” mailed May 18, 2018), and
Final Action (“Final Act.,” mailed August 11, 2017).
3 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Stafanpolus KG, Limited Liability Company (Appeal Br. 1).
4 The Specification and originally filed claims neither mention nor describe
circuits per se.
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and
to produce scrubbed data; and
[3] an indexing[5] logic circuit configured to, based at least in
part upon the scrubbed data, allocate a portion of an
undifferentiated sales category to each differentiated sales
category.
Claims 21–40 stand rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Appellant’s Disclosure
01. Forecasts produced by software programs are only as accurate
as the data provided to them. One difficulty in obtaining accurate
data is due to the fact that the sale of certain items can be recorded
in different ways by a point-of-sale device (e.g., cash register).
Spec. para. 4.
02. Point-of-sale data that include both individual item sales and
undifferentiated, miscellaneous or variety item sales are
ambiguous and typically result in inaccurate forecasts.

5 An index in this context refers to a fraction or percentage contribution of
an individual item to the sales of an associated miscellaneous group item.
See FF 03.
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Accordingly, a need exists for a technique for disambiguating
point-of-sale data to enhance forecasting accuracy. Spec. para. 5.
03. An item index is a fraction or percentage contribution of an
individual item to the sales of an associated miscellaneous group
item. Spec. para. 32.
04. Scrubbing data is similar to masking or removing data. Spec.
paras. 31 and 36.
ANALYSIS
None of the claims are nominal process claims. All are nominal
apparatus and system claims. All of the claims are substantively process
claims, however, because all claims recite only nominal structure labels with
no structural limitations. Instead, the limitations are all functional,
expressed as process steps performed by the structure labels. Even the
Specification fails to describe implementation details. For example, as to
claim 21, the Specification does not describe a filtering logic circuit.
Instead, the Specification refers only to logic for scrubbing, removing, or
otherwise blocking certain types of data6 with no structural detail. The
Specification does not describe an indexing logic circuit. Instead, the
Specification refers only to an item indexer7 with no structural detail. Thus
we refer to the exemplary claim 21 as a process claim in what follows.

6 See e.g., Spec. para. 31.
7 See e.g., Spec. para. 7.
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STEP 18
Claim 21, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, “[w]hat
else is there in the claims before us? To answer that question,
. . . consider the elements of each claim both individually and
“as an ordered combination” to determine whether the
additional elements “transform the nature of the claim” into a
patent-eligible application. [The Court] described step two of
this analysis as a search for an “‘inventive concept’”—i.e., an
element or combination of elements that is “sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations
omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc.,
566 U.S. 66 (2012)). To perform this test, we must first determine what the
claims are directed to. This begins by determining whether the claims recite
one of the judicial exceptions (a law of nature, a natural phenomenon, or an
abstract idea). Then, if the claims recite a judicial exception, determining
whether the claims at issue are directed to the recited judicial exception, or

8 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”).
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whether the recited judicial exception is integrated into a practical
application of that exception, i.e., that the claims “apply, rely on, or use the
judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception.” Revised Guidance, 84 Fed. Reg. at
54. If the claims are directed to a judicial exception, then finally
determining whether the claims provide an inventive concept because the
additional elements recited in the claims provide significantly more than the
recited judicial exception.
STEP 2A Prong 1
At a high level, and for our preliminary analysis, we note that claim
21 recites a method, performed by some nominal apparatus, comprising
receiving sales data, removing sales data, and allocating sales data to
categories. Removing data is modifying data. Allocating data is
rudimentary analysis. Thus, claim 21 recites receiving, modifying, and
analyzing data. None of the limitations recites technological implementation
details for any of these steps, but instead recite only results desired by any
and all possible means. As we determine supra, although claim 21 recites
structure labels for performing these steps, no structural limitations or other
technological implementation details are recited.
From this we see that claim 21 does not recite the judicial exceptions
of either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the Revised Guidance, which
extracts and synthesizes key concepts identified by the courts, abstract ideas
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include (1) mathematical concepts9, (2) certain methods of organizing
human activity10, and (3) mental processes11. Among those certain methods
of organizing human activity listed in the Revised Guidance are commercial
or legal interactions. Like those concepts, claim 21 recites the concept of
managing sales and marketing. Specifically, claim 21 recites operations that
would ordinarily take place in advising one to filter and categorize sales data
for analysis. The advice to filter and categorize sales data for analysis
involves historical sales data from at least one POS device, which is an
economic act, and scrubbing the sales data, which is an act ordinarily
performed in the stream of commerce. For example, claim 21 recites
“receiv[ing] historical sales data from at least one POS device,” which is an
activity that would take place whenever one is managing sales activity.
Similarly, claim 1 recites “produce scrubbed [sales] data,” which is also
characteristic of managing commercial sales.
The Examiner determines the claims to be directed to a certain
method of organizing human activity. Answer 7–8. The preamble to claim
21 does not recite what it is to achieve, but the steps in claim 21 result in

9 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v.
Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018).
10 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed.
Cir. 2018).
11 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
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managing sales and marketing by filtering and categorizing sales data for
analysis absent any technological mechanism other than a conventional
computer for doing so.
As to the specific limitations, limitation 1 recites receiving data.
Limitations 2 and 3 recite generic and conventional modifying and analyzing
of sales data, which advise one to apply generic functions to get to these
results. The limitations thus recite advice for filtering and categorizing sales
data for analysis. To advocate filtering and categorizing sales data for
analysis is conceptual advice for results desired and not technological
operations.
The Specification at paragraph 1 describes the invention as relating to
increasing forecast accuracy by disambiguating point of sale data. Thus, all
this intrinsic evidence shows that claim 21 recites managing sales and
marketing. This is consistent with the Examiner’s determination.
This in turn is an example of commercial or legal interactions as a
certain method of organizing human activity because managing sales and
marketing is part of commercial interaction. The concept of managing sales
and marketing by filtering and categorizing sales data for analysis is one
idea for monitoring sales for managerial purposes. The steps recited in
claim 21 are part of how this might conceptually be premised.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. Content Extraction &
Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347
(Fed. Cir. 2014) (collecting, recognizing, and storing data fed into an ATM).
Alternatively, this is an example of concepts performed in the human
mind as mental processes because the steps of receiving, modifying, and
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analyzing data mimic human thought processes of observation, evaluation,
judgment, and opinion, perhaps with paper and pencil, where the data
interpretation is perceptible only in the human mind. See In re TLI
Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir.
2016). Claim 21, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data reception, modification, and
analysis and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims not abstract because
they “focused on a specific asserted improvement in computer animation”).
As such, claim 21 recites receiving, modifying, and analyzing data, and not a
technological implementation or application of that idea.
From this we conclude that at least to this degree, claim 21 recites
managing sales and marketing by filtering and categorizing sales data for
analysis, which is a commercial and legal interaction, one of certain methods
of organizing human activity identified in the Revised Guidance, and, thus,
an abstract idea.
STEP 2A Prong 2
The next issue is whether claim 21 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
some technological implementation or application of, or improvement to,
this concept i.e. integrated into a practical application.12

12 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At
some level, “all inventions ... embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas.”
Thus, an invention is not rendered ineligible for patent simply
because it involves an abstract concept. “[A]pplication[s]” of
such concepts “ ‘to a new and useful end,’ ” we have said,
remain eligible for patent protection. Accordingly, in applying
the § 101 exception, we must distinguish between patents that
claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those
that integrate the building blocks into something more.
Alice, 573 U.S. at 217 (citations omitted).
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,
devoid of implementation details. Step 1 is a pure data gathering step.
Limitations describing the nature of the data do not alter this. Step 2 recites
basic conventional data operations such as generating, updating, and storing
data. Steps 3 recites generic computer processing expressed in terms of
results desired by any and all possible means and so present no more than
conceptual advice. All purported inventive aspects reside in how the data is
interpreted and the results desired, and not in how the process physically
enforces such a data interpretation or in how the processing technologically
achieves those results.
Viewed as a whole, Appellant’s claim 21 simply recites the concept of
managing sales and marketing by filtering and categorizing sales data for
analysis as performed by a generic computer apparatus. This is no more
than conceptual advice on the parameters for this concept and the generic
computer processes necessary to process those parameters, and do not recite
any particular implementation.
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Claim 21 does not, for example, purport to improve the functioning of
the computer itself. Nor does it effect an improvement in any other
technology or technical field. The 12+ pages of specification do not bulge
with disclosure, but only spell out different generic equipment13 and
parameters that might be applied using this concept and the particular steps
such conventional processing would entail based on the concept of
managing sales and marketing by filtering and categorizing sales data for
analysis under different scenarios. They do not describe any particular
improvement in the manner a computer functions. Instead, claim 21 at issue
amounts to nothing significantly more than an instruction to apply managing
sales and marketing by filtering and categorizing sales data for analysis
using some unspecified, generic computer components. Under our
precedents, that is not enough to transform an abstract idea into a patent-
eligible invention. See Alice, 573 U.S. at 225–26.
None of the limitations reflects an improvement in the functioning of
a computer, or an improvement to other technology or technical field,
applies or uses a judicial exception to effect a particular treatment or
prophylaxis for a disease or medical condition, implements a judicial
exception with, or uses a judicial exception in conjunction with, a particular
machine or manufacture that is integral to the claim, effects a transformation
or reduction of a particular article to a different state or thing, or applies or
uses the judicial exception in some other meaningful way beyond generally
linking the use of the judicial exception to a particular technological

13 The Specification describes a POS device and network server. Spec.
para. 22.
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environment, such that the claim as a whole is more than a drafting effort
designed to monopolize the exception.
We conclude that claim 21 is directed to achieving the result of
managing sales and marketing by advising one to filter and categorize sales
data for analysis, as distinguished from a technological improvement for
achieving or applying that result. This amounts to commercial or legal
interactions, which fall within certain methods of organizing human activity
that constitute abstract ideas. The claim does not integrate the judicial
exception into a practical application.
STEP 2B
The next issue is whether claim 21 provides an inventive concept
because the additional elements recited in the claim provide significantly
more than the recited judicial exception.
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
featur[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
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Alice, 573 U.S. at 223–24 (citations omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea [] on a generic
computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer element at each step of the process is purely conventional. Using
a computer apparatus for receiving, modifying, and analyzing data amounts
to electronic data query and retrieval—one of the most basic functions of a
computer. All of these functions are generic, routine, conventional computer
activities that are performed only for their conventional uses. See Elec.
Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). See
also In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303,
1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms
‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming”). None of
these activities is used in some unconventional manner nor does any produce
some unexpected result. The Appellant does not contend it invented any of
these activities. In short, each step does no more than require a generic
computer to perform generic computer functions. As to the data operated
upon, “even if a process of collecting and analyzing information is ‘limited
to particular content’ or a particular ‘source,’ that limitation does not make
the collection and analysis other than abstract.” SAP America, 898 F.3d at
1168.
Considered as an ordered combination, the computer components of
the Appellant’s claim 21 add nothing that is not already present when the
steps are considered separately. The sequence of data reception-
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modification-analysis is equally generic and conventional. See
Ultramercial, 772 F.3d at 715 (sequence of receiving, selecting, offering for
exchange, display, allowing access, and receiving payment recited an
abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis,
modification, generation, display, and transmission), Two-Way Media Ltd. v.
Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)
(sequence of processing, routing, controlling, and monitoring). The ordering
of the steps is therefore ordinary and conventional.
We conclude that claim 21 does not provide an inventive concept
because the additional elements recited in the claim do not provide
significantly more than the recited judicial exception.
REMAINING CLAIMS
Claim 21 is representative. Its dependent claims merely describe
process parameters. We conclude that the claims at issue are directed to a
patent-ineligible concept itself, and not to the practical application of that
concept.
Again, although all claims are nominal structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long “warn[ed] ... against” interpreting § 101“in
ways that make patent eligibility ‘depend simply on the
draftsman’s art.’
Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any
particular machine.
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LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer apparatus itself or
to any other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by the commercial and
legal interaction of managing sales and marketing by advising one to filter
and categorize sales data for analysis, without significantly more.
APPELLANT’S ARGUMENTS
As to the Appellant’s Appeal Brief arguments, we adopt the
Examiner’s determinations and analysis from Answer 3–18 and reach
similar legal conclusions. We now turn to the Reply Brief.
We are not persuaded by the Appellant’s argument that “[w]hen the
POS device or terminal with its inherent problems is properly recognized as
part of the claimed subject matter, it is clear that the claims recite a solution
to a technical problem specifically introduced by the POS device or
terminal.” Reply Br. 1. This argument is follow up to that in the Appeal
Brief.
Clerks using POS devices use the devices to record sales. A
problem arises when a clerk using the POS device does not
know the specific code for an item or cannot locate the correct
button on the POS device. In this circumstance, the clerk
cannot correctly categorize the sale. Instead, the clerk records
the sale as a miscellaneous item, i.e., as an undifferentiated sale.
This problem is inherent in the POS device and, hence, the
resulting data. The clerk must know the specific language of
the POS device (the codes or buttons) to properly record the
transaction. Without that knowledge, the sale cannot be
correctly categorized. Even a clerk with perfect knowledge of
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the identity of an item cannot correctly categorize the sale
without the knowledge of how the POS device wants the
information. A clerk that can distinguish a chocolate chip
cookie and a gluten-free chocolate chip cookie cannot properly
record the sale without the knowledge specific to the POS
device of what code or what button to press.
Appeal Br. 4–5 (citations omitted). This argument in turn follows the
statement of the problem to be solved in the Specification. FF 01–02.
The problem for the Appellant is that this states an accounting
problem, not a technological problem. The problem as stated is no more
than classic bookkeeping miscoding from a chart of accounts, either due to
clerical error or insufficiency of the chart. The classic solutions are to
expand the chart and correct the classification, dump the amount in some
miscellaneous account, or bury the amount in some existing classification
for being de minimis. The Appellant’s solution is a variation on this third
avenue by apportioning the amount over plural existing accounts.
The Appellant essentially contends that because a chart of accounts is
not sufficiently expansive, its programming into a POS device inherits such
defect, and therefore the problem is technological because no data in the
POS can solve the issue. This is instead an error in the data made available,
which is present irrespective of hardware. Any purported improvement is to
information, not technology. “[T]he claims are focused on providing
information to traders in a way that helps them process information more
quickly, not on improving computers or technology. . . . . The ‘tool for
presentation” here . . . is simply a generic computer.’” Trading Techs. Int’l,
Inc. v. IBG LLC, 921 F.3d 1378, 1384–85 (Fed. Cir. 2019)(citations
omitted). The tool here is not even a generic POS device, but instead some
generic processor apparatus that scrubs and allocates the data.
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We are not persuaded by the Appellant’s argument that “[i]n each
independent claim, the historical data is from a POS device. The Examiner
continues to omit reference to the POS device or terminal as the source of
the data in analyzing the alleged abstract idea.” Reply Br. 1. As we
determined supra, data source cannot confer eligibility. See SAP America
supra.
We are not persuaded by the Appellant’s argument that
the data from the POS device or terminal inherently has error
resulting from limitations of the POS device or terminal. A
person with perfect knowledge reading the differentiation of
products, i.e., someone who could communicate perfect sales
information if not using a POS device or terminal, may still
create undifferentiated sales data due to a lack of knowledge of
the POS device or terminal. The Examiner' [sic] reference to
data from a POS feed without reference to a POS device or
terminal removes this essential character of the data.
Reply Br. 1–2. This is a variation on the first argument supra and is equally
unpersuasive here.
We are not persuaded by the Appellant’s argument that:
The Examiner alleges various generic components including a
POS device. Answer at 12-14. However, a POS device is not a
generic component. It is not a general-purpose processor. As
explained in section IV-C-1 (pages 4-6) of the Appeal Brief, a
POS device has particular limitations. If the POS device were a
generic computer component, it would be able to receive data in
any form. An operator with perfect knowledge of the
differentiation of products could enter enough information to
sufficiently differentiate the sales data from a generic computer.
However, the historical sales data is not from a generic
computer. It is from a POS device with all of its associated
limitations. Thus, the POS device is not a generic computer
component. Its presence adds significantly more to the claims.
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Necessarily, it limits the claims from receiving sales data from
a generic computer.
Reply Br. 2. A Point of Sales device is a generic label for a device used at
the point of sale. The Appellant neither recites structure in the claims nor
describes structure in the Specification that would render such a device non-
generic. Indeed, the Specification describes using such a device in the
conventional manner and for its conventional purpose. The entire invention
only operates upon the generic data that such a generic device produces and
not with or upon a Point of Sale device per se. See Content Extraction &
Transmission (collecting, recognizing, and storing data fed into an ATM).
We are not persuaded by the Appellant’s argument that “the fact that a
POS device and the data from it may be known in the art does not itself
transform the claims into non-statutory subject matter.” Reply Br. 3. The
Appellant’s argument gets the pertinent issue in reverse. The issue is
whether reciting generic and conventional hardware for their conventional
purpose used in their conventional manner can turn an abstract inventive
idea into eligible subject matter. It cannot.
Upon examining claim 1 and the specification . . . , we find no
“inventive concept” that transforms the abstract idea of out-of-
region delivery of regional broadcasting into a patent-eligible
application of that abstract idea. The claim simply recites the
use of generic features of cellular telephones, such as a storage
medium and a graphical user interface, as well as routine
functions, such as transmitting and receiving signals, to
implement the underlying idea. That is not enough.
Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1262–1263
(Fed. Cir. 2016).
The Appellant further argues that the asserted claims are akin to
the claims found patent-eligible in DDR Holdings, LLC v. Hotels.com,
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L.P. 773 F.3d 1245 (Fed. Cir. 2014). Reply Br. 3. In DDR Holdings, the
Court evaluated the eligibility of claims “address[ing] the problem of
retaining website visitors that, if adhering to the routine, conventional
functioning of Internet hyperlink protocol, would be instantly
transported away from a host’s website after ‘clicking’ on an
advertisement and activating a hyperlink.” Id. at 1257. There, the Court
found that the claims were patent eligible because they transformed the
manner in which a hyperlink typically functions to resolve a problem
that had no “pre-Internet analog.” Id. at 1258. The Court cautioned,
however, “that not all claims purporting to address Internet-centric
challenges are eligible for patent.” Id. For example, in DDR Holdings the
Court distinguished the patent-eligible claims at issue from claims found
patent-ineligible in Ultramercial. See id. at 1258–59 (citing Ultramercial,
772 F.3d at 715–16). As noted there, the Ultramercial claims were
“directed to a specific method of advertising and content distribution that
was previously unknown and never employed on the Internet before.” Id.
at 1258 (quoting Ultramercial, 772 F.3d at 715–16). Nevertheless, those
claims were patent ineligible because they “merely recite[d] the abstract
idea of ‘offering media content in exchange for viewing an advertisement,’
along with ‘routine additional steps such as updating an activity log,
requiring a request from the consumer to view the ad, restrictions on public
access, and use of the Internet.’” Id.
The Appellant’s asserted claims are analogous to claims found
ineligible in Ultramercial and distinct from claims found eligible in DDR
Holdings. The ineligible claims in Ultramercial recited “providing [a]
media product for sale at an Internet website;” “restricting general public
Appeal 2018-007632
Application 14/085,800

20

access to said media product;” “receiving from the consumer a request
to view [a] sponsor message;” and “if the sponsor message is an interactive
message, presenting at least one query to the consumer and allowing said
consumer access to said media product after receiving a response to said at
least one query.” 772 F.3d at 712. Similarly, the Appellant’s asserted
claims recite receiving, modifying, and analyzing data. This is precisely
the type of Internet activity found ineligible in Ultramercial.
We are not persuaded by the Appellant’s argument that “[t]he
Examiner cannot remove elements and consider only what is left.” Reply
Br. 3. The Examiner does not remove elements. Instead, the Examiner
treats generic elements used in their conventional manner for their
conventional purpose as such in the analysis.
We are not persuaded by the Appellant’s argument that the claims
contain an inventive concept that is also found in the specific ordered
combination of the limitations, similar to the Federal Circuit's findings in
BASCOM (BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341
(Fed. Cir. 2016)). Reply Br. 4–5. Initially, we remind the Appellant that
BASCOM did not find claims eligible on the substance, but rather that the
Appellees did not provide sufficient evidence to support a 12(b)(6) motion to
dismiss in which facts are presumed in the non-movant’s favor.
The key fact in BASCOM was the presence of a structural change in
“installation of a filtering tool at a specific location, remote from the end-
users, with customizable filtering features specific to each end user. This
design gives the filtering tool both the benefits of a filter on a local computer
and the benefits of a filter on the ISP server.” BASCOM, 827 F.3d at 1350.
The instant claims have no analogous structural benefit.
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Application 14/085,800

21

CONCLUSIONS OF LAW
The rejection of claims 21–40 under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more is proper.
CONCLUSION
The rejection of claims 21–40 is affirmed.
In summary:
Claims
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
21–40 101 Eligibility 21–40

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED